R v Maetia [1992] SBHC 13; HC-CRC 032 of 1992 (6 November 1992)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 32 of 1992

R

-v-

JOHN BARE MAETIA

High Court of Solomon Islands
(Muria ACJ.)

Hearing: 22, 23 October, 2 and 3 November 1992
Judgment: 6 November 1992

F. Mwanesalua, DPP, for the Crown
J. Wasiraro for J. Bare Maetia

MURIA ACJ: The accused, John Bare, has been charged together with two other co-Accused with the following six offences to which he pleaded Not Guilty. Those offences and their particulars appear hereunder:

Count 5 -Statement of Offence

Putting goods prohibited for export on an aircraft, contrary to section 37(1) as read with section 141 of the Customs and Excise Act.

Particulars of offence

Mario Perfili, Peter James McDougall and John Bare Maetia, at Afutara Airport, Malaita Province, put onboard an aircraft prohibited exports, to wit wild birds as prescribed in L.N. 78/92.

Count 6 -Statement of offence

Bringing goods prohibited for export to Afutara Airport, contrary to section 37(1) as read with section 141 of the Customs and Excise Act.

Particulars of Offence

Mario Perfili, Peter James McDougall and John Bare Maetia, between 17 and 20 August 1992 in Solomon Islands, brought prohibited goods for export to Afutara Airport, to wit wild birds as prescribed in L.N. 78/92.

Count 8 -Statement of Offence

Putting goods on aircraft for export, contrary to section 136(1)(b) as read with section 140 of the Customs and Excise Act.

Particulars of Offence

Mario Perfili, Peter James McDougall and John Bare Maetia, between 19 and 20 August 1992, at Afutara Airport, Malaita Province, put goods for export on an aircraft at a place not approved for loading.

Count 9 -Statement of Offence

Putting goods on aircraft for export, contrary to section 136(1)(c) as read with section 140 of the Customs and Excise Act.

Particulars of Offence

Mario Perfili, Peter James McDougall and John Bare Maetia, between 19 and 20 August 1992, at Afutara Airport, Malaita Province, put goods for export on an aircraft without the authority of the proper officer.

Count 10 -Statement of Offence

Knowing concerned in fraudulent attempt at evasion of laws and restrictions of customs relating to exportation of goods, contrary to section 37(1) as read with section 214(e) of the Customs and Excise Act.

Particulars of offence

Mario Perfili, Peter James McDougall and John Bare Maetia, between 17 and 20 August 1992, in Solomon Islands, knowing concerned in the attempted evasion of the prohibition to the export of wild birds.

Count 11 -Statement of Offence

Taking protected birds, contrary to section 3(a) of the Wild Birds Protection Act.

Particulars of Offence

Mario Perfili, Peter James McDougall and John Bare Maetia, between 1 July 1992 and 20 August 1992, in Solomon Islands, took protected birds to wit eclectus roratus solomonesis, yellow bibbed lorries and rainbow lorikeets.

The other two co-Accused had already been dealt with for the six offences as well as other offences and have since left the country.

As this is a criminal trial the prosecution must make me sure of this Accuse's guilt beyond reasonable doubt before I can convict him of any of the six offences he was charged with.

The accused had been dealing with wild life export business since 1985 and had in the past been exporting out from Henderson Airport. In May 1992, the Accused obtained a Permit to export wild life. The permits was for the period between 11 May 1992 to 8 August and it permitted the Accused to export cacatua ducorpis which is commonly known as the White Cockatoo. In early 1992 the Accused met Mario Perfili in Honiara and had discussions with him about buying of wild birds and exporting them to overseas buyers.

In early July 1992 Mr Perfili discussed with the Accused the possibility of obtaining Aviation Gas. On 6 July 1992 with the money given by Mr Perfili, the Accused bought 5 x 44 gallon drums of aviation fuel from Shell Co. (P.I.) Ltd in Honiara for a sum of SI$2,110.00. The 5 drums were sent to Auki on board M.V. Mawo on 9 July 1992 by the Accused and Mr Perfili. The Accused and Mr Perfili then travelled to Auki by Solomon Airlines plane and then by truck to Afutara. At Afutara the Accused asked one Henry Buka for permission for a plane from to land at Afutara and to collect wild birds.

Mr Perfili then left for Australia. After Mr Perfili left for Australia the Accused with the help of others went about purchasing wild birds from local people from various parts of the country. The money used to buy wild birds from the people came from Mario Perfili who used to send money in from Australia. At one stage Mario Perfili sent $3,600.00 to the Accused through Hon. Alfred Maetia who is Minister in the Government.

With the money sent by Mario Perfili, the Accused shared it with 'their' (i.e his and Mr Perfili's) buying agents in Guadalcanal, Western and Malaita Provinces. Apart from the wild birds now bought from the people by their buying agents, the Accused had already had in his possession 40 eclectus parrots.

In the meantime a Prohibition order dated 15 June 1992 under the Customs and Excise Act, L.N. 78 of 1992 was made by the Minister responsible for customs and excise matters. The Order prohibits the export of 'any wild or domesticated bird, reptile or insect or any egg of any such bird or reptile' from Solomon Islands.

In late July 1992, Mario Perfili returned to Solomon Islands and again met the Accused in Honiara and had discussions with him. On 11 August 1992 the aviation gas 44 gallon-drums were dropped off at Afutara by some men. On 17 August 1992 a Solomon Airline plane landed at Afutara with Mario Perfili and the Accused who both went to inspect where the aviation gas was stored. The Accused told Mr Henry Buka that a plane would be landing to collect birds which were being transported to Afutara by a Langa Langa boat. However it was M.V. Labini which brought the birds to Afutara on 18 August 1992.

On 18 August 1992 the Accused went from his home at Namorako to Auki to meet Mario Perfili. The Accused then assisted Mario Perfili to find transport to enable Perfili to travel to Afutara early the next morning. Perfili having hired a canoe went to Afutara very early in the morning of 19 August 1992 while the Accused remained in Auki. At about late in the afternoon of 19 August 1992, the plane from Australia landed and was to take the birds to Australia. Fortunately the police intervened, arrested the pilot and Mr Perfili, confiscated the birds and later charged the pilot, Mr James McDougall, Mario Perfili and the Accused in connection with the attempted smuggling of the birds out of the country.

I have heard evidence from nine prosecution witnesses as well as from the accused himself. At the end of all the evidence, I have no doubt whatsoever that the whole case was all about an attempted smuggling of wild birds out of this country. However the evidence must satisfy the court to the required standard that this accused is guilty of each of the specific offences with which he was charged.

Generally the facts in this case are not in dispute. The accused, however, denied knowing Mr. Perfili's plan to smuggle birds out of the country from Afutara Airfield. He further denied knowledge of the transporting of the birds from Honiara to Tetere and to Afutara. He also further denied that he informed Mr. Henry Buka about the plane that would be arriving from Australia would be taking birds out from the country from Afutara.

Allen Glass (PW1) gave evidence that the accused asked him in late July 1992 to go to Western Province to collect wild birds for him. Mr. Glass went and bought 140 birds for the accused in early August and brought them to Honiara.

John Alfred Abuito'o Laua (PW2) gave evidence that in or about late July or early August 1992 the accused gave him some money to buy birds for the accused and Mr. Perfili. PW2 bought about 70 birds which he later took to Afutara.

Henry Buka (PW3) gave evidence that on 2/7/92 the accused and Mr. Mario Perfili came to Afutara and the accused requested permission for a plane to land at Afutara. The accused further told PW3 that the plane would be coming from Australia to collect birds to be taken to Australia. PW3 then told the accused and Mr. Perfili that a landing fee would have to be paid which the accused promised to pay. No landing fee was ever paid. PW3 further stated that on 11/8/92 the 5 x 44 gallon drums of Aviation fuel were brought to Afutara. On 17/8/92 Mr. Perfili and the accused came to Afutara and the accused told him (Mr Buka) that a ship would be bringing birds. On 18/8/92 the birds arrived at Afutara by M.V. Labini. On 19/8/92, Mr. Perfili arrived early in the morning and later in the afternoon the plane from Australia arrived. The birds were loaded into the plane but the police interviewed and arrested Mr. McDougall (the Pilot) and Mr. Perfili. Peter Taloni (PW4) confirmed that it was the accused who paid the freight of the Aviation Gas to be taken to Malaita by MB Mawo.

Henry Isa (PW5) confirmed in evidence that the accused was issued with three permits in the past to export wildlife. Three of the Permits were for export of reptiles. The last permit was issued on 11/5/92 and expired on 8/8/92 for the export of Cacatua ducorpsi (white Cockatoo). PW5 told the court that the accused was notified of the band on export of wild or domesticated birds, reptiles and insects. The Prohibition Order was made on 15/6/92.

Wale Peka (PW8) confirmed that the accused came to PW8's father and asked to hire a canoe for Mr. Perfili to go to Afutara on 19/8/92. PW8 then took Mr. Perfili at about 4 am to Afutara by canoe.

Elison Sale (PW9) gave evidence that on 17/8/92 at about 10 o'clock at night, Mr. Perfili and Newton Misi took the birds from Panatina to Tetere beach using a Government Hilux belonging to the Hon. Minister Alfred Maetia. There they loaded the MV Labini with the birds and set off for Afutara, arriving at Afutara at about 7 a.m 18/8/92.

The accused as I have said earlier agreed to the facts except for those denials I mentioned earlier also. The accused agreed he told Mr. Buka about the plane that would be coming to Afutara from Australia but did not say anything about the plane picking up birds from Afutara. It is particularly interesting to note that the accused had been throughout the months of July and August 1992 a very close associate of Mr. Perfili.

The accused confirmed that his permit to export wild life only allowed him to export white cockatoos and no other species of parrots. In any case, his licence expired on 8/8/92. Further on 15/6/92 a Prohibition order was issued which the accused knew about that order prohibits exports of "any wild or domesticated bird, reptiles or insect or any egg of such bird or reptiles." Yet the accused went about with the help of agents, buying white cockatoos, eclectus parrots, yellow bibbed lorries, rainbow lorries, and cardinal lorries. There were 191 live birds found at Afutara, all caged and ready to be taken out of the Solomon Islands. Why would the accused have wasted so much time and energy buying birds when he was advised of the band on export of birds? The only plausible answer is that he had done so following his discussions with Mr. Perfili.

The accused had in the past, when he was exporting reptiles, exported wild life out from Henderson Airport - which is a designated airport for the purpose of export of goods out of the country. Afutara is not an approved port of loading. The accused knew this very well.

The accused knew on 16/8/92 that the birds which were kept at Panatina would be taken to Malaita. He said, however, that was for the purpose of keeping them in Malaita as it was expensive to keep them in Honiara. The evidence clearly show that the birds were taken to Malaita, not to be kept there cheaply but to be loaded into a plane to be taken out of the country. Mr. Buka had no to reason to lie to the court. He gave a clear account of what happened on 2/7/92, 11/8/92, 12/8/92, 17/8/92, 18/8/92 and 19/8/92. The accused told Mr. Buka on 2/7/92 at Afutara about the plane that would arrive and take the birds to Australia. On 17/8/92 the accused told Mr. Buka at Afutara that a ship would be bringing the birds to Afutara. I accept entirely Mr. Buka's evidence. I do not believe the accused when he said that he knew the plane was coming but that he did not know for what purpose. I do not believe the accused on this.

There is the evidence as to the purchase and organising the transport for the Aviation Gas drums to Malaita which were later taken to Afutara. He knew that Iduka and Brian took the Aviation Gas drums from Auki to Afutara. The accused was more or less the main organiser of this. Then there was the meeting of Mr. Perfili at Auki on 18/8/92 and hiring of a canoe which 4 a.m. to Afutara on 19/8/92. The accused arranged for the transport.

In evidence the accused also confirmed that the 40 birds (eclectus parrot) which is protected species were included in the 191 birds which were confiscated at the Afutara. Asked what was the arrangement about those 40 birds, the accused stated:

"The arrangement was that if I send them, I would receive money for them."

Again in cross-examination about what the arrangement was for all the birds, the accused stated:

"The arrangement was that he (Mario) would give me $5,610.00 for all the birds. I disagreed, so he said he would double-up the prices."

The defence sought to rely on the Business licence issued by the Malaita Province which said to authorise the accused to carry out the business of wild life export. That licence was for the period of 1/4/92 to 31/3/93. The Malaita Provincial Assembly is empowered by section 32 of the Provincial Government Act, 1981 to make laws for the Province by Ordinance. Pursuant to that power, the Malaita Provincial Assembly made the Malaita Province Business Licence Ordinance, 1986. That Ordinance requires, by section 3, that every person carrying a "business" within Malaita Province shall first take out a business licence and pay a licence fee. The accused was issued with a licence that authorises him to deal in wildlife business within Malaita Province for the purpose of export. However that licence is not a 'permit' to export out from the country. Such a permit must be issued by the Ministry of Natural Resources.

The accused knew that his Business Licence authorised him to carry out buying and collecting of birds as a business for the purpose of export. He also knew he had to have a permit before he could export the birds out from the country. That was what he had been doing in the past. In this case the accused knew his permit was only for the export of cacatua ducorpsi (white cockatoo) which expired on 8/8/92. In any case the accused knew of the band imposed on 15/6/92. Yet the accused was prepared to carry on the business of purchasing birds for export and did so in association with Mr. Perfili.

On the evidence before the Court I am satisfied beyond reasonable doubt that the accused is a principal offender coming within the operation of section 21 of the Penal Code. He and Mr. Perfili had a common purpose which was to take the prohibited goods out of the country through Afutara in defiance of the Prohibition Order imposed by the Laws of this country. They were prepared and did carry out that unlawful purpose in conjunction with one another and thereby caught by section 22 of the Penal Code as well.

The evidence in this case against the accused are overwhelming. Counsel for the accused stated that the facts alleged were not disputed but that the Court should draw no adverse inference from the facts because the accused's explanations were reasonable. On the evidence before the Court, I do not think I can accept Counsel's submission. The accused had tried to explain his way out of the whole incident. Unfortunately no reasonable tribunal of fact could believe his explanations. I certainly do not.

On the evidence I find the accused guilty of Cts 5, 6, 8, 9 and 10.

As to count 11, section 3(a) prohibits the taking of any wild bird specified in the schedule. I am not entirely satisfied that what the accused was alleged to have done was contrary to section 3(a) of the Wild Birds Protection Act. I must therefore give him the benefit of that doubt and I acquit him of the count 11.

Guilty of counts 5, 6, 8, 9 and 10.
Acquitted of count 11.

(G.J.B. Muria)
CHIEF JUSTICE